Freedom of Religion and Secular Human Rights in the

European Court of Human Rights

Discrimination on the grounds of religion or belief is expressly
condemned and forms a necessary feature of the secular humanrights regime. The Universal Declaration of Human Rights (UDHR)
and the International Covenant on Civil and Political Rights (ICCPR),
contain specific provisions relating to freedom of religion. Moreover,
the United Nations Declaration on the Elimination of all Forms of
Intolerance and Discrimination (1981) is dedicated entirely to the
issue of religious freedom. However, as Javaid Rehman points out, it
is the administrative practice and the application of legislative
norms that have proven to be highly problematic in respect of full
compliance with the right to freedom of religion.1 This is likely based
on the limitation clause, such as the one contained in Article 9(2) of
the European Convention of Human Rights,2 which states: Freedom
to manifest ones religion or beliefs shall be subject only to such
limitations as are prescribed by law and are necessary in a
democratic society in the interests of public safety, for the
protection of public order, health or morals, or for the protection of
the rights and freedoms of others. Therefore, it may be argued that
freedom of religion is in essence only a right in expressed terms,
whereas the practical application of right goes only as far as to
assist the principle of non-discrimination as a necessary feature of
the human rights regime.
This contention is supported by the appalling case law of the
European Court of Human Rights3 on Article 9 of the Convention.
For example, in Leyla Sahin v Turkey (2005), the European Court
considered the restriction on wearing the headscarf as necessary in
a democratic society.4 Since most Muslim women see wearing the
headscarf as a religious obligation, which is why they choose to
wear it, such a restriction on a religious right is nothing less than
discriminatory. Rehman, while commenting on the European Courts
decision in the Sahin case, supports this assertion by expressing
that the European Courts position is not only open to criticism for
endorsing an oppressive state restriction on article 9, but also for its
insensitivity towards freedom of religion and the personal autonomy
of women in relation to the manifestation and practice of religion.
He sees such cases as anti-Islamic bias on the part of the European
human-rights institutions.5

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3
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Rehman p41
Hereinafter, the Convention
Hereinafter, European Court
Rehman p45
Rehman p45

Carolyn Evans provides a more supple explanation. She argues that

the conceptual foundations on which Article 9 case law is built are
weak and difficult cases are beginning to expose the cracks in the
intellectual architecture of the Courts religious freedom
jurisprudence.6 Evans points out that the question of balancing
religious freedom against other important rights and freedoms
(including gender equality and the right to be free from religion) is
one that vexes courts with responsibility for protecting rights at both
international and domestic levels. She nonetheless recognise
European Courts aim to protect secularism, as she points out that
the European Court clearly feels some sympathy for the desire to
protect secularism and defend against fundamentalism, aims it
considers compatible with Convention values.7 This is also obvious
from the European Courts decision in Refah Partisi (Turkish Welfare
Party) Case (2003), in which it was held that Shariah is incompatible
with human rights law.8 Thus a cold war between secular human
rights law and Shariah is noticeable.
Nonetheless, Evans still see hope for the right to freedom of religion
in the secular human rights system. She points out that in these
complex cases, the Court needs a robust intellectual approach to
assist it to fairly and appropriately balance out important competing
interests. However, she admits, it has yet to develop such an
approach and its failure is leading to an incoherent body of case law
that does not give sufficient protection to religious freedom. 9 This is
reinforced by an analysis of the headscarf cases, which mention no
discussion of the religious beliefs of the applications, no
consideration of the considerable hardships that this ruling might
cause them, and no serious justification for why the religious
practice was considered inimical to other Convention values such as
gender equality or State ideologies such as secularism.10 Individual
religious freedom therefore tends to be compromised fairly easily
when brought into conflict with other values that the Court implies
are more important to the human rights agenda. Thus, whether
there genuinely is a hope for the right to freedom of religion will
depend on a discussion on the universality of human rights.

6 Evans p322
7 Evans p339
8 Rehman p44
9 Evans 340
10 Evans P341